Hahn v. USA

Filing 51

ORDER FOR SUPPLEMENTAL BRIEFING ON WHY THE COURT SHOULD NOT DISMISS AS UNTIMELY HAHN'S CLAIMS CHALLENGING HIS CONVICTIONS by Magistrate Judge Damian L. Martinez. (nlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARCUS HAHN,
Petitioner,
v.

No. 21-cv-0880 KWR/DLM

UNITED STATES OF AMERICA,
Respondent.
ORDER FOR SUPPLEMENTAL BRIEFING ON WHY THE COURT SHOULD NOT
DISMISS AS UNTIMELY HAHN’S CLAIMS CHALLENGING HIS CONVICTIONS
Petitioner Marcus Hahn filed his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence or Judgment by a Person in Federal Custody (“Amended Motion”) on
September 19, 2022. (Doc. 15.) Respondent the United States filed its Response on July 10, 2024.
(Doc. 45.) As explained below, it appears from the face of Hahn’s Amended Motion that his claims
challenging his convictions in 2000 are untimely and may be dismissed on that ground. The Court
may raise this issue sua sponte, but it must provide the parties an opportunity to present their
positions before deciding it. Hence, the Court will order supplemental briefing limited to whether
Hahn’s challenges to his convictions are untimely under § 2255(f).
I. PROCEDURAL HISTORY
In 2000, a jury convicted Hahn of manufacturing 100 or more marijuana plants and of
maintaining a premises for the purpose of manufacturing, distributing and using marijuana (Counts
1 and 2). United States v. Hahn, No. 00cr82, Doc. 184 (D.N.M.). The jury also convicted Hahn of
possessing a firearm in furtherance of the manufacture of marijuana in violation of 18 U.S.C.
§ 924(c) (Count 3) and of possessing a firearm in furtherance of the maintenance of a place to
manufacture, distribute and use marijuana also in violation of 18 U.S.C. § 924(c) (Count 4). Id.
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Hahn appealed his sentence for the second firearm offense (Count 4) in 2002. United States
v. Hahn, 38 F. App’x 553 (10th Cir. 2002). The Tenth Circuit affirmed the conviction and sentence,
id. at 555, and the Supreme Court denied his petition for writ of certiorari on January 27, 2003.
Hahn, No. 00cr82, Doc. 180. He then filed a § 2255 petition in 2004 and a motion under 28 U.S.C.
§ 2241 in 2016. United States v. Hahn, 191 F. App’x 758 (10th Cir. 2006); Hahn v. Moseley, 931
F.3d 295 (4th Cir. 2019). The Fourth Circuit Court of Appeals granted the latter motion and Count
4 was vacated in 2019. See Hahn, 931 F.3d at 304; Hahn, No. 00cr82, Doc. 209 at 4. On September
25, 2020, the New Mexico District Court, after a hearing at which Hahn was present, reduced
Hahn’s sentence from 180 months to 120 months and entered the Second Amended Judgment.
Hahn, No. 00cr82, Doc. 251.
Hahn filed his “Second Motion to Vacate under 28 U.S.C. 2255” on September 8, 2021,
(Doc. 1) and the Amended Motion on September 19, 2022. (Doc. 15.) In the Amended Motion,
Hahn challenges both his convictions and the Second Amended Judgment. Id. Noting that the
Court lacks jurisdiction over second/successive § 2255 claims, the Court ordered Respondent to
file a limited answer addressing which claims, if any, are “second or successive” under 28 U.S.C.
§ 2255(h). (Doc. 16.) In its Limited Answer, Respondent relied on Prendergast v. Clements, 699
F.3d 1182 (10th Cir. 2012) to argue that the Court lacks jurisdiction over Hahn’s challenges to his
convictions because they are unauthorized “second or successive” claims. (Doc. 24 at 16.)
Significantly, Respondent expressly reserved its statute of limitation defense “for a later date”
because the Court’s order “did not request [its] position on whether the claims are” untimely. Id.
Nevertheless, it asserted cursorily that Hahn’s challenges to his conviction were untimely, and
Hahn similarly asserted to the contrary without substantial analysis. (See, e.g., Docs. 24 at 8; 27 at
3, 15, 16.)

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The undersigned determined that the Court has jurisdiction over Hahn’s claims because
they are not second or successive and noted that Prendergast applied to the analysis of the
timeliness of a petitioner’s claims, not to whether the claims were second or successive. (Doc. 32
at 9.) See Magwood v. Patterson, 561 U.S. 320, 336–37, 340 (2010). However, because
Respondent expressly reserved its timeliness argument, the undersigned did not analyze that issue.
(Doc. 32 at 14.) The Court adopted the undersigned’s proposed findings of fact and ordered
Respondent to file a complete response to Hahn’s Motion, which it did on July 10, 2024. (Doc. 45.)
Respondent did not argue in the Response that any of Hahn’s claims are untimely. Id. Hahn filed
a Reply on August 26, 2024. (Doc. 50.)
II. DISCUSSION
“A motion by a federal prisoner for postconviction relief under 28 U.S.C. § 2255 is subject
to a one-year time limitation that generally runs from” the date on which the judgment of
conviction becomes final. Clay v. United States, 537 U.S. 522, 524 (2003); see § 2255(f)(1));
United States v. Carbajal-Moreno, 332 F. App’x 472, 474 (10th Cir. 2009). The one-year
limitation period can be extended where:
(1) The inmate was prevented from making a motion by “governmental action in
violation of the Constitution or laws of the United States . . . .” § 2255(f)(2);
(2) The motion is based on a “right [that] has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review.”
§ 2255(f)(3); or
(3) The inmate could not have discovered “the facts supporting the claim . . .
through the exercise of due diligence.” § 2255(f)(4).
A judgment is final when the Supreme Court “affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition
expires.” Clay, 537 U.S. at 527; see also United States v. Willis, 202 F.3d 1279, 1280 (10th Cir.
2000) (stating that “a judgment of conviction is final for purposes of the one-year limitation period

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in § 2255 when the United States Supreme Court denies a petition for writ of certiorari after a
direct appeal”). The limitation period may be equitably tolled if petitioners establish that (1) they
have been ”’pursuing [their] rights diligently, and (2) that some extraordinary circumstance stood
in [their] way’ and prevented timely filing.” Lawrence v. Fla., 549 U.S. 327, 336 (2007) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); United States v. Grealish, 559 F. App’x 786,
788 (10th Cir. 2014) (same).
“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of” claims in a
habeas petition when untimeliness is clear from the petition, so long as the “parties [have] fair
notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 209–210
(2006) (citations omitted); Kilgore v. Att’y Gen. of Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008)
(“A petition’s untimeliness must either be pled by the government as an affirmative defense[] or
be clear from the face of the petition itself.”). In considering whether to assess timeliness sua
sponte, the “court must assure itself that the petitioner is not significantly prejudiced by the delayed
focus on the limitation issue, and “determine whether the interests of justice would be better served
by addressing the merits or by dismissing the petition as time barred.” Day, 547 U.S. at 210
(quoting Granberry v. Greer, 481 U.S. 129, 136 (1987).
However, a court may not sua sponte raise the timeliness of a petitioner’s claims if the
respondent has deliberately or expressly waived it. Day, 547 U.S. at 202; United States v. Morgan,
775 F. App’x 456, 457 n.1 (10th Cir. 2019). “To be express, a waiver of [the defense] must be
clear, explicit, and unambiguous.” McCormick v. Parker, 571 F. App’x 683, 687 (10th Cir. 2014)
(quoting Sharrieff v. Cathel, 574 F.3d 225, 229 (3rd Cir. 2009)). For example, the state was found
to have expressly waived the defense where it “twice informed” the court that it would not
challenge the timeliness of the petitioner’s claims even though it did not concede they were timely.

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Wood v. Milyard, 566 U.S. 463, 467–468, 474 (2012). Where the government has not expressly
waived the defense or “deliberately steered” the Court away from the issue, id., “Day creates an
exception to the general rule of forfeiture” and “allows a court to consider untimeliness [even]
when the” respondent did not “raise it in its answer to the petition.” Kilgore, 519 F.3d at 1089; see
United States v. Hopkins, 920 F.3d 690, 697 n.10 (10th Cir. 2019) (holding that because the
respondent “never suggested it was not contesting the timeliness of [the] motion[, the respondent]
thus ha[d] not ‘intentionally relinquished’ its argument that [the] motion was untimely”).
I find that Respondent has not expressly waived this defense because it (1) stated in its
Limited Answer specifically that it did not waive the defense (Doc. 24 at 16) and (2) was silent on
the defense in its subsequent Response. (Doc. 45.) See Kilgore, 519 F.3d at 1089 (permitting the
court to raise the issue if the respondent did not raise it in the response). Additionally, Hahn asserts
in the Amended Motion that his direct appeal was complete in 2002. (Doc. 15 at 2.) See Hahn, No.
00cr82, Doc. 180. It therefore appears from the face of the Amended Motion that Hahn’s
challenges to his convictions are untimely because he filed them over 20 years later. (Docs. 1; 15
at 2.) See Prendergast, 699 F.3d at 1185, 1187–88 (holding that courts must assess the timeliness
of claims on a “claim by claim basis” and affirming the district court’s dismissal of Prendergast’s
claims challenging his conviction as untimely even though his claims challenging an amended
sentence were not). The Court will therefore provide the parties an opportunity to present their
positions on whether any of Hahn’s claims are barred by the one-year statute of limitations.
THEREFORE, THE PARTIES ARE ORDERED to file supplemental briefs limited to
addressing whether the statute of limitations bars Hahn’s claims challenging his convictions, as
follows:

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1. Respondent must file a supplemental brief no later than 14 days from the date of this
Order. In its supplemental brief, Respondent must specify whether it waives the statute
of limitations defense as to any of Hahn’s claims and, if not, which of Hahn’s claims
are untimely. The Court will construe Respondent’s failure to file a supplemental brief
as a waiver of the statute of limitations defense.
2. Hahn must file his response to Respondent’s supplemental brief no later than 14 days
after the supplement brief is filed. The Court may dismiss Hahn’s claims challenging
his convictions if a response is not filed within this deadline. See D.N.M. LR-Civ.
7.1(b) (“The failure of a party to file and serve a response in opposition to a motion
within the time prescribed for doing so constitutes consent to grant the motion.”).
3. Respondent may file an optional reply to Hahn’s response no later than 14 days after
Hahn files his response.
4. Each party must limit their filings to 6 pages and address only the issue of the timeliness
of Hahn’s claims under § 2255(f). The Court will disregard any argument on other
issues. In addition, exhibits or attachments are not permitted unless they relate to the
timeliness of Hahn’s claims or the tolling of the statute of limitations.

_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE

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